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Constitutional expert explains objections to presidential system in Turkey 30 mai 2012

Posted by Acturca in Turkey / Turquie.
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BBC Monitoring European (UK) 30 May 2012                                      Türkçe

Text of report by Turkish newspaper Vatan website on 21 May

Interview with Ergun Ozbudun, Professor of Constitutional Law at Bilkent University, by Mine Senocakli: « The Semi-presidential System Is More Objectionable Than the Presidential System »

Professor Ergun Ozbudun is a legal expert who [led the drafting of] the « Civilian Constitution » for the AKP [Justice and Development Party] [in 2007].

[Senocakli] The debate over presidential and semi-presidential systems is back. What do you think? The draft constitution you prepared for the AKP did not envision a presidential system.

[Ozbudun] Yes. Indeed, the election platform of the AKP in 2007 pledged that relations among different state organs would be based on parliamentary principles and that the powers of the president would be reviewed within that framework. In any event, all six of us who constituted [the constitutional drafting] group [in 2007] believe that a parliamentary system would be more appropriate for Turkey. This is what we believed then and this is what we believe now. Consequently, the draft we prepared based on that pledge proposed a system that was more consistent with the parliamentary model. Although we proposed the popular election of the president, we also proposed that the president’s powers be reduced compared to what we have now and that these powers be limited to symbolic and representative functions. However, that draft never became a document that the AKP adopted as a party. Furthermore, five years have elapsed since then. The AKP did not have such a pledge or proclamation then.

Why do you think this change has occurred in the AKP?

This topic is coming up now, but this is not the first time that it is being discussed in Turkey. There were people who advocated a presidential or semi-presidential system during the process of drafting the 1982 constitution also. Subsequently, [former Presidents Turgut] Ozal and [Suleyman] Demirel also argued in favour of such a system. Now the AKP is standing before the public with a similar appeal. All the centre-right parties have had such aspirations. It happened with ANAP [Motherland Party] and the DYP [True Path Party]. However, the opposite of this was pledged in the 2007 election platform. As a result, we drafted a constitution that was compatible with the parliamentary system. In any event, we prepared a draft that was more compatible with the parliamentary system because we believed that this would be more appropriate. The 1982 constitution is not fully compatible with the parliamentary system anyway. The powers of the head of state in a parliamentary system are essentially symbolic and representative. The head of state does not possess important constitutional powers. However, the 1982 constitution created a type of hybrid or mixed system. In other words, even as it retained some elements of the parliamentary system, it created a very powerful state presidency and assigned it very serious constitutional powers. We aimed to eliminate this anomaly and to make the new system more compatible with the essence of a parliamentary model. This was the intent of our draft. Personally, I still think this way today. I think that a parliamentary system poses fewer problems and is more reasonable compared to the other two systems despite all of its own problems.

Debate Swinging Between Extremes

Why?

We need to look at the drawbacks of the other two systems to understand this. The current debate keeps swinging between extremes. Some think that a presidential system is like a monarchy, a sultanate, or a dictatorship and that it may destroy even the flawed democracy we have now. At the other extreme, there is the view that this would be a panacea for all of our problems. As in all debates, the truth lies between these two extremes. In other words, neither extreme view is correct; neither is consistent with the truth. There is little doubt that the presidential system is one form of democratic government. It has nothing to do with monarchy or dictatorship. The United States is one of the most advanced democracies in the world. There is no doubt about that. They have used this system for more than 200 years.

On the othe r hand, we often hear that the presidential system has not worked anywhere except in the United States – the Latin American countries for example.

This is also an exaggerated statement. It is true that Latin American countries had problematic systems up until recent decades, but it would not be right to blame this entirely on the presidential system. The presidential system has worked without any problems in Brazil, Argentina, Chile, and Uruguay since the 1980’s or the 1990’s. My objection to the presidential system does not stem from exaggerated claims that it may lead to a dictatorship or a sultanate. It is based on concerns that are more pragmatic.

Such as?

The essence of the presidential system is the clear separation of powers between the executive and legislative branches of government. In that system, the president and the legislative organ take office through separate elections and for a fixed period. During that fixed period, neither the president can dissolve the legislative organ nor can the legislative organ force the president to step down. Naturally, this results in stability in the executive branch. This may be considered an advantage, but gridlock and confrontation are very likely when the president and majority of the legislative branch are from different parties. It is true that the president has executive power and can exercise it as he wishes, but the president often needs the enactment of new laws to implement his policies and to keep his promises. Then he needs the approval of the legislative branch. Similarly, the legislative organ has absolute power over the budget. An executive organ needs its budget approved to carry out its activities. Consequently, it needs the support of the legislative branch on that issue also. This relationship has not created very serious problems in the United States because American parties are not rigid, disciplined, ideological parties like ours. The political differences between them are essentially minimal. Consequently, even at times when the president and the majority of Congress are from different parties, problems are solved through compromise, mutual concessions, and centrist policies. In contrast, when we imagine this implemented in a country like Turkey – let us say that we have a strong president elected by popular vote and a legislative majority that opposes him. I think that such a system would be characterized by serious gridlock and tensions. I consider this the principal drawback of this system because we do not have the culture of compromise to overcome these problems. The worldviews of the parties are very different. Like most European parties, Turkish parties are rigid, disciplined, and ideological parties. Consequently, circumstances that do not cause any crises in the United States might well generate conflict, gridlock, and crisis in Turkey and similar countries. This is my principal objection to the presidential system.

Might Be Worse Than Sezer Era

Nonetheless, let us say that Turkey adopts a presidential or semi-presidential system. What would happen?

There might not be any problems at this time because the AKP has an electoral support of roughly 50 per cent. If Mr Erdogan becomes a candidate for the presidency, it is extremely likely that he will be elected. We may also surmise that, based on current data, the AKP will win a majority in the parliamentary elections that will follow his election. Consequently, the confrontation I mentioned earlier may not materialize in the near future. However, constitutional amendments cannot be planned based on the near future. The choice of a government system is a very fundamental and radical choice. It would not be right to make this choice based on today’s circumstances. These balances may change and the circumstances I mentioned may surface in the future. There is always the possibility that the president is from one party and the parliamentary majority is from another party or political current. If t hat happens, the challenges it would create would not be easy to overcome.

Let us say that Prime Minister Erdogan becomes president and that a parliament in which the other three parties, namely the CHP [Republican People’s Party], MHP [Nationalist Action Party], and BDP [Peace and Democracy Party], hold the majority of seats is elected.

Then, there would be continual problems. Putting aside the discussion of a presidential or semi-presidential system, we have had problems between the president and governments based on parliamentary majorities even in our existing system. Let us recall what happened during Mr [Ahmet Necdet] Sezer’s tenure. The resolution of those conflicts was often quite difficult. A presidential system would aggravate this situation even more because the president would be elected by popular vote. That would give the president more democratic legitimacy. The system would give him more discretion and broader constitutional powers. If that is accompanied by a parliamentary majority that opposes him, then, as I noted, the system will inevitably experience continual gridlock, conflict, and bickering. This is why we must not just look at present circumstances and political balances and think about what might happen in the future when making such a choice. This is not a simple change that might be implemented today and altered again tomorrow. This is a fundamental change. Its pluses and minuses, its rewards and risks must be calculated very precisely.

Unrealistic Debate

Does not the presidential system have any advantages?

Its advantage is government stability. Because the parliament cannot force the government to step down, the government remains in office throughout the fixed term of office of the president. In contrast, if one party does not have a parliamentary majority and there is a coalition government in a parliamentary system, there may be government crises if the coalition partners do not get along very well. These may force the government to step down. There may also be serious problems such as coalition partners not agreeing on a common policy and therefore the government becoming dysfunctional. This is not the current situation in Turkey. At present, we have a party that has the support of half the electorate and thatcontrols the majority of seats in parliament because of that support. It appears that this situation will not change in the near future.

Professor Ersin Kalaycioglu says: « If there is no major economic or political crisis, the AKP will win elections for a fourth or even fifth time. As a result, Turkey will have a ‘dominant party system,’ similar to what they have in Japan and Sweden. »

I agree with Ersin’s assessment. Of course, it is always difficult to predict the future. No one knows what will happen in ten years but, based on today’s picture, there is no reason for Turkey to abandon the parliamentary system and to make such a fundamental change. If we want the change for political stability, we already have as much stability as is possible. We also have economic stability. In any event, these two are closely related to each other. Maintaining economic stability is difficult in a country where there is no political stability. Nevertheless, the current system makes this possible. It is true that the presidential system provides better stability for the executive branch, but this does not guarantee continuity of policies. The president needs the approval of the legislative branch to implement his policies on many issues. This is also true in the United States. For example, many federal appointments – such as ambassadors and Supreme Court justices – require the approval of the Senate. Friction is always possible when the two branches of government are controlled by different majorities.

Current Constitution Tailored for Evren

What about a semi-presidential system? At a recent meeting, the Central Administrative Council of the AKP reportedly agreed that a semi-presidential system would be more appropriate during the transition period.

I think that a semi-presidential system is even more objectionable than a presidential system because division is directly built into the executive branch. The semi-presidential system is a hybrid system that is a mixture of the parliamentary system and the presidential system. On one side, there is a popularly elected president with broad constitutional powers – as in France and Russia. On the other side, there is a parliament that is also elected by popular vote and then there is a government that is accountable to that parliament. In other words, that government can remain in office only if it has the confidence of that parliament – as in the parliamentary system. In this case too, if the two branches are controlled by different parties or currents, the likelihood of confrontation becomes very high. This happens because part of the executive branch is a government that is accountable to parliament and part of it is a popularly elected president with executive powers. When [the government and the president] are from two different parties, conflicts, divisions, and, therefore, gridlock are inevitable within the executive branch. In other words, we cannot expect to find the harmony and cooperation of Putin and Medvedev everywhere. Apart from their personal harmony, these two men are from the same party. The situation would be much more difficult if the two were from different parties. This is the principal drawback of the semi-presidential system.

AKP Cannot Change Current System

Minister of Labour Faruk Celik says: « We effectively transitioned to a semi-presidential system when we adopted a popularly elected presidency. »

Mr Celik is correct to some extent. We can say that the semi-presidential system has two attributes. One is the election of the president directly by the people. This has already happened because of the amendment adopted in 2007. The second attribute is that the president has broad constitutional powers – that is, the presidency is not just a symbolic office. The 1982 constitution already assigns substantial powers to Turkey’s president. It does not view the presidency only as a symbolic or representative office. That constitution was in many ways tailored to fit Mr Kenan Evren. We all know this. Consequently, Mr Celik’s assessment is not without justification. In any event, today Turkey does not have a classical parliamentary system. Ours is a mixture of parliamentary and semi-presidential systems. In other words, the current system is not much different from a semi-presidential system. Because of that, there were some quite unpleasant confrontations between the president and the government in the past – during Mr Sezer’s tenure in particular. There were problems with not just the AKP government but also the Ecevit government that preceded it. Consequently, we – that is the group that prepared the draft constitution in 2007 and the proponents of a parliamentary system in Turkey – believe that the current excessive powers of the president must be reduced so to minimize the risks of such confrontations in the future. We believe that the presidency must be turned into a largely symbolic and representative office that represents the integrity of the country and the nation. This would largely eliminate the prospects of friction in the future.

Yes, but why a parliamentary system?

The parliamentary system has its own logic. The government resigns or is forced to step down if the parliamentary majority changes for one reason or another – for example, because of disagreements among coalition partners. Then, a new government that reflects the majority of the new parliament is formed. Consequently, the logic of the parliamentary system bars gridlock. Of course, there are exceptional periods. This is the reason I favour the parliamentary system. I favour it because it is less conducive to gridlock or conflicts within the system.

Let us say that the AKP insists and this radical change happens.

This has no chance of being realized. Even if the AKP insists on pursuing this, even if it treats it as a sine qua non, it does not have the parliamentary majority to pass a constitutional amendment. A minimum of three-fifths of all seats [in the National Assembly] – that is 330 seats – is required for amending the constitution. The AKP has fewer seats than that; it has 325 seats. Given that no other party favours the semi-presidential system that has been proposed, it is impossible to pass this proposal through the Assembly. Nor can it be put to a public referendum because the same three-fifths majority is required to hold a referendum. Consequently, I think this is a somewhat unrealistic debate. In other words, I do not think that this can be realized with the present balance of powers.

Prof Kalaycioglu also says: « American academic Antonio Cheibub says: ‘When a country has experienced a military coup, it finds it hard to regain stability regardless of whether it adopts a parliamentary, presidential, or semi-presidential system. Consequently, if you have a regime, try to fix its failing parts in small steps instead of trying to change it completely.’ Obviously, preventing military coups is essential for democratization, but this is not all that needs to be done. First, the judiciary has to be fixed and the rule of law must be strengthened. We have serious problems in these areas. »

Cheibub’s assessment is a bit too sweeping. There are many countries that have experienced military coups and that have subsequently implemented stable democracies. However, he may be right in the following sense: neither the presidential system, nor the semi-presidential system, nor the parliamentary system is a magic formula that can solve all the political and constitutional problems of a nation. I think that pinning all of our hopes on the choice of a government system is an extremely superficial approach. Today, Turkey has many pressing problems of democracy such as freedom of expression and the resolution of the Kurdish problem. It would be more appropriate to focus on these. I think that the debate over whether we should have a parliamentary or a presidential system is very inconsequential and artificial compared to these issues. Consequently, we may perhaps conclude the following: We have before us a constitutional drafting process. We do not know if it will succeed but deadlocking this process with a debate over a presidential, semi-presidential, or parliamentary system would be highly undesirable, because I think that this is a highly secondary issue.

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